Revisiting Judicial Rulings

by | Mar 15, 2023 | Law

It is not common knowledge but once a ruling is made in the context of legal proceedings, be it substantive or procedural, the ruling must be adhered to and cannot be revisited by the same court.

Support for this trite proposition of law can be found in Hartecon JV Sdn Bhd & Anor v Hartela Contractors Ltd [1996] 2 MLJ 57 (“Hartecon”) whereby Gopal Sri Ram JCA (later FCJ) held the following:

“Once a judge makes a ruling, substantive or procedural, final or interlocutory, it must be adhered to and may not be reopened. Although the first decision was made on an interlocutory matter which was purely procedural in nature, it was nevertheless binding on the court and on all parties to the lis until its reversal on appeal.”[1] (Emphasis mine)

The ratio decidendi of Hartecon, on the reopening (or lack thereof) of a ruling that has been made, was referred to positively amongst others by:

(i) The Federal Court in Joseph bin Paulus Lantip & Ors v Unilever Plc [2018] supp MLJ 151;[2] and

(ii) The Court of Appeal in Kay Hian Pte Ltd v Ma Boon Lan [2003] 4 MLJ 603.[3]

In addition, the Court of Appeal in Westech Sdn Bhd (in voluntary liquidation) v Thong Weng Lock (as surviving partner of Thong Kee Trading Co) [2014] 3 MLJ 427 expressly stated that:

“… The case of Hartecon JV Sdn Bhd & Anor v Hartela Contractors Ltd [1996] 2 MLJ 57 is an authority for the principle that res judicata applies to a ruling on procedural as well as substantive issue.”[4] (Emphasis mine)

In Quantum Petroleum (M) Sdn Bhd & Anor v Manimaran Periasamy & Ors [2019] MLJU 1866 (“Quantum Petroleum”), Wong Kian Kheong J (now JCA) made in clear that parties are estopped from applying to a Court to revisit a ruling made by the same court:

“It is trite law that once a court has decided a matter regarding evidence and procedure during proceedings, all parties are estopped from applying to the same court to re-visit the matter.

…

Based on the above Court of Appeal decisions which are binding on me by reason of the stare decisis doctrine, the Plaintiffs are estopped from re-visiting the Ruling by way of Enc. 480.”[5] (Emphasis mine)

The rationale for this legal position was very aptly explained by Wong Kian Kheong J (now JCA) in Quantum Petroleum:

“If otherwise, before the conclusion of the trial of this case, all my rulings in respect of evidence and procedure can be subsequently challenged by any party. In such an event, an expeditious and economical disposal of this case cannot be attained. The RC has a three-fold objective (3 Objectives), namely to ensure a just, expeditious and economical disposal of cases – please see O 34 r 1(1)(b) RC and CELCOM (M) Bhd & Anor v Tan Sri Dato’ Tajudin bin Ramli & Ors and another case [2017] 4 AMR 418, at [19] and [20].”[6] (Emphasis mine)

The proper procedure would be to challenge the propriety of a ruling if/when the matter goes on appeal.

This can be seen from Gopal Sri Ram JCA’s pronouncement in Hartecon:

“Once a judge makes a ruling, substantive or procedural, final or interlocutory, it must be adhered to and may not be reopened. Although the first decision was made on an interlocutory matter which was purely procedural in nature, it was nevertheless binding on the court and on all parties to the lis until its reversal on appeal.”[7] (Emphasis mine)

Further, in Quantum Petroleum, Wong Kian Kheong J (now JCA) was also of the same view:

“I should add that the Plaintiffs have a right to challenge the Ruling as follows –

(a) after the trial of the Counterclaim has been concluded;

(b) this court delivers a decision against the Plaintiffs (Final Decision);

(c) the Plaintiffs appeal to the Court of Appeal against the Final Decision [Plaintiffs’ Appeal (Final Decision)]; and

(d) in the Plaintiffs’ Appeal (Final Decision), the Plaintiffs are entitled to submit that the Ruling has been made erroneously.”[8] (Emphasis mine)

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Res Judicata: Recognised & Neglected Exceptions

by | Sep 16, 2020 | Law

What is res judicata?

“The Latin term ‘res judicata’ literally translated means ‘a matter adjudged’.”[1] “A point or question becomes res judicata when it has been so decided … as conclusively to settle it, and so as to prevent the same question being against raised by the same parties or their representatives …”[2]

The principle of res judicata “… expresses a general public interest policy that the same issue (or cause of action) should not be litigated more than once even if the parties are different. It prevents vexatious litigation and any abuse of the courts’ process on the premise that final judgments are binding and conclusive (see Henderson v Henderson (1843) 3 Hare 100)” (Letchumanan a/l Gopal (representative for the estate of Rajammah a/p Muthusamy, deceased) v Pacific Orient & Co Sdn Bhd [2011] 6 MLJ 788, per Abdul Hamid Embong JCA, as he then was, delivering the judgment of the court).”[3]

Spencer Bower and Turner, Res Judicata, 3rd Edition (1996) states six matters to be established in a plea of res judicata. They are the following:

“(i) the decision was judicial in the relevant sense;

(ii) it was in fact pronounced;

(iii) the tribunal had jurisdiction over the parties and the subject matter;

(iv) the decision was – (a) final, and (b) on the merits;

(v) it determined the same questions as that raised in the later question; and

(vi) the parties to the later litigation were either parties to the earlier litigation or their privies, or the earlier decision was in rem.”[4]

Res judicata acts as a bar to “prevent a party from filing an action based on a cause of action which has been decided in an earlier suit concerning the party and/or his or her “privy”” (cause of action estoppel) or “prevent a party from raising any issue in any second and subsequent proceedings which (a) has been raised; or (b) can be raised – in the first proceedings between the parties and/or their privies.”[5] (issue estoppel).

Recognised exceptions

In the recent Federal Court case of Sykt Sebati Sdn Bhd v Pengarah Jabatan Perhutanan & Anor [2019] 2 MLJ 689 [Sykt Sebati], the following was held:

“It is clear however from decided cases that the circumstances alluded to by the Court of Appeal (ie non-consideration of the provisions of the GCA 1949) do not fall within the exceptions to the doctrine of res judicata which are limited to the following situations: fraud or where evidence not available at the original hearing becomes available (see Arnold and others v National Westminister Bank plc [1991] 3 All ER 41; [1991] 2 AC 93 and Hock Hua Bank Bhd v Sahari bin Murid [1981] 1 MLJ 143).”[6]

This is consistent with the decision of an earlier Federal Court in Scott & English (M) Sdn Bhd v Yung Chen Wood Industries Sdn Bhd [2018] 5 MLJ 204 [Scott & English].[7] It would seem that at this point in time, the only recognised exceptions to res judicata are fraud and where evidence not available at the original hearing becomes available.

However, case law in Malaysia and in other jurisdictions have revealed exceptions which were previously accepted by our superior courts only to be neglected in recent times.

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